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tv   [untitled]    December 4, 2012 2:30am-3:00am PST

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evidence is the most useful. we have a standard in criminal law called the reasonable person standard. this fictitious person that we measure everybody's conduct by. we say this is the person, the average person, the average juror, the average individual, the kind of conduct that we would expect an average member of society to live up to. well, as it turns out that none of us are quite average, right. and we might actually be much more like people who we share particular brain structures with or people who we share particular environmental and brain similarities to. so we might need to start thinking about more particularized notions of conduct based on what we would expect of a person who has that type of brain structure who had these types of environmental factors and then start to think about how we want to treat them. do we want to hold those people responsible for their actions or less responsible for their actions. are there certain people who would be better subject to medical treatment instead of
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incarceration. are there certainly people who we actually think would be better off in prison than not being in prison? those types of decisions, i think, are going to be much more useful coming out of the neuroscience in the near term. in the long term, maybe we can get to the point where we make individualized decision-making, but so far it hasn't actually panned out. >> to all of you, do you think that it would be appropriate to keep this out of the courtroom, for instance, until there is a lot more certainty, or should we be using it now and run the risk that we're reaching potentially wrong conclusions? >> i'll jump in first on that and say it's already here. so the idea that we should wait for the science to get better, i think, is just, it's too late for that. so the cat is already out of the bag. the question is what do you do now that it's in the courtroom. well, we have dualing experts. we have judges sitting in a gate keeping role who have to decide whether or not the evidence should be admissible and whether it should be
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permitted in a case. my view is that the more evidence that we can provide to a scrr or to a judge -- jury or to a judge in their decision makings, some objective evidence, some evidence to bolster things like a diagnosis of schizophrenia or i.q., all the better. at the same time we need the critics in the courtroom explaining the shortcomings of the science so that we don't have false evidence that is introduced or undue reliance on science that isn't quite there yet. my preference is recognize it's already there, but make sure that we have robust discussions about the validity of the science before people buy into it too much. >> yeah, i would just add that i basically agree that it's already in the courtroom. however, i would caution that it's not in the courtroom for all uses. justice breyer in a case which was the third of the trilogy which is basically the supreme court weighing in on the
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admissibility of scientific evidence or expert evidence more generally, justice breyer referred to making sure that the science works for the task at hand. this notion of the task at hand i think ought not to be forgotten. the neuroscience might work for certain tasks very well and for other tasks not so well. so i think we have to evaluate it on a case-by-case basis. i very much agree with anita's point that a lot of the neuroscience right now works quite well at the group level and has not yet been shown to work particularly well at the individual level, but having said that, i think that there is, again, a legal necessity issue that is presented. if you go back to graham versus florida it is true that justice kennedy and the supreme court, the majority of the court said that you cannot impose life without parole for a non manslaughter offense for an add less is sent and therefore, he drew the line's did in roeper versus simmons at saying that
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at less sent are simply different. their brains are different than adults. they're less developmentally mature. what happened to terrence graham? he got sentenced. he didn't get sentenced to life without parole that was now unconstitutional. if you actually read what happened at the sentencing hearing for terrence graham, there was, again, dueling psychologists with a scrist and the state sigh kentucky scrist made the claim he was suffering from anti-personality disorder and in his view, no one recovers from anti-personality disorder and therefore he should be put away virtually for the rest of his life and the defense expert is said there has already been demonstration of his increased maturity and that i do think that he will mature out of it and the brain science supported the defense side of that. he got 25 years. that was the sentence. so even though i very much
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agree as a constitutional matter, we can draw those bright lines at the group level, in the end, just by necessity the law has to deal with individuals. >> would you agree that the judicial system is not really the best place for us to be determining whether or not the science behind neuroscience is reliable enough to make judgments? i mean, looking back at things like fingerprints and other tool marks and other sciences, for ensick sciences that came into court and now have been debunked, isn't there a risk, a huge risk? >> there is. i wish that more lawyers knew statistics and research methods. unfortunately, if you're really good in math, you don't necessarily go to law school. but if you're really good in political science or history, you might go to law school and you haven't taken math for a very long time. i think the reality is that the courts have to get up to speed. that was really the lessson of
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the daubert case and kelly frye as well, the lawyers, judges, the system more generally has to be able to evaluate the validity of proper expert testimony. we can't get around it. it's in the courtroom. the problem with latent fingerprints and firearms and handwriting and arson investigation and the list goes on and on as you know better than i, the problem is those were never actually evaluated. the court simply grandfathered it in or never even bothered to look at it. i can assure you that the forensic sciences, the nond.n.a. stuff is not brain science. it doesn't take a kent to look at the scientific methods underlying a lot of the forensic techniques and say that it's mostly junk. i do think your point is well taken that when you get to genetics and you get to neuroscience and get to some of
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the more complex science, i quite frankly think that law schools need to step up. lawyers and judges need to step up to do a better job of understanding it and that's one of the thing kent does. he goes around lecturing judges on the methodology underlying his neuroscience. >> just one note about -- a lot of the sciences that you mention are sciences that were developed not through order scientific method of driver, but -- discovery but were directed by the criminal justice system, the forensic sciences didn't happen from scientists following hypothesis-driven scientific methods and following the scientific methods. neuroscience and d.n.a. are different that way. interestingly, there is a lot of neuroscience collaborations that are happening with people outside of the neuroscientific field. it is still neuroscientists doing the decision-making. the quality of the science is different. >> definitely.
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>> as a result, the question of its appropriateness in the courtroom and whether or not we think that it's likely to follow the same fate and path that these so-called other sciences are, i think it's more likely to be like d.n.a. than it is to be like the forensic sciences which aren't really science to begin with. so i think we can take a little bit of comfort in having it in the courtroom, but also recognizing there is peer-reviewed literature that followed the scientific method. we can actually evaluate it in the courtroom. i agree with david, in order to do so, we need to increase the training of lawyers and judges and the general public in these fields so that people are critically able to evaluate the type of science that is introduced in the courtroom. >> just very quickly, i agree with everything anita said. the one area that you sort of have to keep your aye on is lie detection. two companies are now in the business of doing fmri lie detection. there the commerce is pushing the science a little bit faster than maybe it ought to.
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i agree. >> the science. >> the science, right, exactly. >> ok, we have some questions from the audience that i would like to ask. and i think most of these are probably for the doctor. first question, how does the brain research impact drug cases when the defendand is an addict? >> addiction does bad things to the brain. it dramatically changes the brain. in certain individuals, there is enormous vulnerabilities and risk factors from genetics and brain function that can precipitate or make it to be easier to get addicted to drugs. and there have been, i think, quite a bit of neuroscience focusing on trying to develop better treatments for individuals by understanding the mechanism of those changes. in the courtroom, i believe that to help judges, judges when we do the education, one
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of my collaborators who does this work teaches them how the brain changes with addiction, et cetera, et cetera. that may be helpful for judges sentencing to drug courts for addiction problem instead of prison for a long period of time. the primary problem is one of addiction and treatment of remediation of that and the subsequent behavioral problems and other things is probably far more cost-effective and good for that person than simply sentencing them to prison time. and so i think the neuroscience helps to educate and change our ways that we understand drugs and drug addiction. >> another question is have you ever been allowed to testify regarding i.q. in a hearing or a trial using your program? >> yes, i just did that this weekend. so i testified this morning. i do know that -- so the atkins case was actually argued by a professor at the university of new mexico and he is constantly
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barraged by what's the best way to assess i.q., especially when you have these different tests and different measures, et cetera. i.q. is one of the most well studied things in psychology. so taking a brain scan and fitting your brain along a dimension and getting a value is just a slightly different way of doing it than giving you the tests and stuff like that. so i have not obviously testified to anything like that. i just tried to give that as an example. there is an enormous literature out there that is already peer-reviewed and published on i.q. there are dozens of papers. the big question is how well can i take a single person's brain scan and with what confidence can i get a number associated with it that we would derive an i.q. those measures and ways that we do that get better every month, basically, every year we're getting more and more accurate at taking a single piece of information or complex piece of information and fitting it. to my knowledge, it hasn't been done. i am aware there are patents on
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estimating i.q. using brain imaging which is a measure of metabolites in the brain. i haven't actually -- i'm not aware of any cases in which it's been used. there is no reason why it couldn't be. >> the way it's been, nothing as you have described with the algorithms to map it has been used. brain imaging has been used to try to bolster a claim of lower i.q., not by an algorithm, but by showing brain abnormalities and other things that could be consistent with mental retardation and lower i.q.. >> i would add to that, this is an area that a partnership between the lawyers and the scientists could make a difference. i teach constitutional law. the question i ask is, why is low i.q. an excusing condition from the death penalty? if you go back to atkins and read the opinion, it's on the basis of an eighth amendment analysis of the twin pillars of
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the criminal law which are retribution and deterrence. the court makes the judgment that low i.q. means that you're less responsible and less likely able to be deterred. so the twin pillars of the criminal law don't really apply. but i'm not sure that the psychologists who do psychological testing and i.q. or the neuroscientists have really connected up the constitutional reasons why because it may be that they're substructures of i.q. that are more relevant to the eighth amendment question. it's not a general i.q. score that is ultimately relevant. in fact, the california supreme court has dealt with exactly that question of what subscales might be constitutional relevant rather than the global i.q. score. >> one question here which i think is very interesting. in my community, we strongly feel that diet plays a strong diagnosis of the violence we see, the intake of sugar which is heavily consumed is a factor. what is your take on that? >> diet certainly plays a role
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in controlling and behavior. you know, i'm not that familiar with all of the different science associated with different dietary restrictions and other types of things. you can certainly reduce the instance of aggression in animal models by putting them on different diets. you can make them more likely to be aggressive, for example, by changing diets. i have a sister who is a nutritionist around the corner. she would kill me if i didn't tell you to eat right, you know. [laughter] >> that being said, i do believe that deficits in certain essential aminnow acids and other types of things can certainly increase people's impulsivity. they can increase people's chances of not -- of those types of things, yeah. >> and one final question and i'm going to rephrase it a little bit, but why is it that we treat people who have, say, traumatic brain injuries or
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other diagnosed mental illnesses in the criminal justice system rather than in the mental health system? [applause] >> so what i showed you today was to give you that exact what is neuroscience doing in the legal is system and so that person of the person with the tumor, you could all see that and so can a radiologist. but the else that we do know of those images. no radiologist can just see by looking at them. we are so sensitive to individual differences in i.q., in age, in all of these different availables, psychopathy scores, whatever it is, we can develop beautiful pictures of these things. so the question is, how is the legal system going to deal with all of these different, you know, images and other types of things that we can now tell you about your brain and how is that going to change things? so i tend to view, you know, individuals who have brain differences for whatever reason worthy of developing better treatments for them that can
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help to remediate those problems. as psychologists, we study abnormal behavior. anita shows distribution, most of us in here. you get anybody out here who is externalizing or anyone out here who is internalizing, as a psychologist, we try to bring them back in here so they're more healthy. that's what we study. when you're having problems in your life or any other area, if we can do something, talking to you versus talk therapy or medicine that might help you, what we're trying to do is get everybody back here so we're just kind of more balanced. with respect to the traumatic brain injuries and other types of things, that's much simpler for people to kind of understand that you had a concussive event or you had a t.b.i., traumatic brain injury, that's caused problems. we should be developing ways of helping to manage and treat those problems just like we do individuals who have the other types of problems. >> let me just add one thing there, which is it's a good question, but it highlights one of the challenges of introducing neuroscience today
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in the courtroom. at kent showed you some of his slides and mentioned during his talk, he is trying to develop treatments as he develops abilities to diagnose psychopathy. but that's what comes first is the diagnosis. if that is what is introduced first before there are any treatments available, which is the status of much of the neuroscience today, then there isn't a treatment that is available. and so part of the problem today is it tends to serve as an aggravating factor because you can't say, well, here is a simple way to fix that thing that we have identified. in a few cases where defends have been able to show that they have been successfully treated, like, for example, if they were unaware that they had intermittent explosive disorder and it could be treated with an anti-depressant, an ssri because of their low seratonin levels for example and they showed that their behavior has changed since they have been in prison awaiting trial but after
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conviction and appealing a death sentence, in those cases it had more traction. it makes sense we should focus on treatment, but as a cautionary tale, if it is introduced before treatment is available, how are juries likely to receive that information? they're likely to receive it as a person saying i am somebody who was programmed to be violent. there is no solution for my particular ailment. so there is a disconnect in the neuroscience given the timing. >> so i would just comment that i think we have pretty decent treatments for remediating some of the most intractable individuals. they're not used around the world, et cetera, and many countries take individuals who have done very bad things as youth and have developed management and treatment strategies that keep them from reoffending when they're out in the community. they're much more man yearly. there is much more supervision than we typically get in the united states. it's usually much more cost-effective to manage them outside of a facility with high
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scrutiny than it is to incarcerate. as you probably know, california spends about eight times as much money for every inmate as it does for every student in the university of california system. and so you could reorganize those resources and put they will more towards supervision and other types of things and manage a lot of those individuals that are currently incarcerated in a much more effective way that is going to save you tax dollars but also reduce the chance that they'll continue to spiral into those, like the stories we heard earlier today. [applause] >> if i could add one quick thought that ties with the first panel and this panel. it's the question of resource allocation. the point needs to be taken quite seriously especially with adolescents. if you get the diagnosis and the community is not ready to step up and do the interventions that are more humane, then the inhumane alternatives may end up costing
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more but being the easy political solution. >> i think we're out of time. i would like to thank everyone on the panel for their time.. >> thank you kindly. as an ex-felon, it's not my first effort with a public defender in public for a bunch of people who i know are working hard to make this substance abuse incarceration cognitive behavior thing work all together. i started doing my career in rehabs and jails and shelters and where i live. it's a privilege to work for people who chose to be the audience. oddly enough, they don't get that in the jails and prisons as a joke, really. they don't, i have been sober 23 years and incarcerated in a lot of the 1980's -- [applause] >> thanks, listen, i hope some day we reach a point where that's not necessary to applaud for. i really do. 23 years sober means that i have run out of excuses to
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misbehave. that's all it means. i'm criminal by nature. i'm challenged by generically designed. i'm a comedian by trade. i love the effort that it takes to make this disease, alcoholism addiction co-dependency, the trifecta of dysfunction that comes from a family source that's really nothing to make fun of. i make a living during humor about a disease that kills more people than car accidents, cancer and war combined, over 92% of incarcerated individuals have a drug or alcohol history or a thread in their family. i'm one of those kids, oldest of five kids in a very dysfunctional family. a.d.d. in our house stood for all different dads. [laughter] >> normal people don't laugh at that at all. they don't laugh at that at all. i get a huge response from that from the people who are the affected, the afflicted, the convicted part. there are two groups of people here. it's not black or white, or gay
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or straight or tall or short. this disease, is substance abuse could care less how you entered it, finance, romance, circumstances, glance, it doesn't care how you got here. the two groups of people i depreas every time i go to work are normal people and the rest of us. normal people don't giggle right there. normal people always go, oh, there is another group. welcome, how y'all doing? the rest of us go, that's us right there. now, if you're wondering which group you're in, you're normal. the rest of us have known for a lot of years not normal. normal means most. most people don't drink and drive because it's illegal. they wear a seat belt because it's safe. they don't slap their kid and tell them that's because they love them and that's the way we show them. ok, there might be three groups of people in this room. normal, the rest of us and not getting any better anytime soon. the threat here is lesson. the shame is removed.
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the stigma is replaced, we go from dope to hope here at some point. we go from drinking and singing and lying and dying to staying and playing and praying and living and giving. that's what we get to do. i'm an incarcerated guy. incarceration was not the same as rehabilitation for me. it just wasn't the same. but i have been over 500 jails and prisons in 23 years. i speak nine languages now. they're all english, but i speak fortune 500. i speak corporate, i speak kid. i have a 5-year-old. he is safe all day in the home that i have created, not the one i grew up in. my wife is an afflicted convicted lady. she actually did more jail time than i did she has seniority at home. [laughter] >> normal people don't laugh right there at all. don't the wives only have seniority? yes, especially in the penal system. but that was a double-edged sword there, i hope you got it.
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some of your pot smokers or ex-pot smokers, the jokes won't kick in for a long time. marijuana retards the ha ha muscle. three months from now somebody will go they're all different dads. sorry, your honor, i apologize, i wasn't laughing at you. [laughter] >> the concept here of humor as a basis for approaching a topic that is awkward to discuss has never been a mystery to us. the art of that is sometimes awkward, especially on a public level because there is a risk, god bless jeff who took a risk. i called him on friday, i heard a radio ad, i said, hey, i can help on tuesday. i love what i get to do now. i work for everybody i choose to. i turn down more work for speaking in comedy than more people in those industries can ask to do in a year. i'm designed to do this. trauma, drama, aapplicanted,
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addicted mama, that all leads to a shield for a accepts of humor -- sense of humor that provides balance in unfairness. i just made a living doing it because it allowed me to keep on living doing it. my dad would crush you at our house so hard that you would black out. and then he was offended you couldn't stick around for the full beating. i'm not the dad i had. my son is not the boy i was. because people like you have allowed me to become the man i am. he gets to be the child he wants to be. now just saying that in public, child of god, somebody is going to write an email. separation, church and state, got god bless you. you didn't hire me. shut up! that's a joke. let it go. the big deal today from jeff was, he goes, just try not to get the city sued when you're done. just do that. [laughter] >> that was the big focus. i don't care if they laugh. i just don't want to deal with
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all of the paperwork. humor has a way of highlighting hurt, illuminating illness. it does that on its own. comedy has a way of pointing out where we're fractured or brittle or inflexible or intolerant. comedy does that. so today during the 12 minutes i'm up here, if you don't laugh, it's not because i wasn't funny. it's because you are broken somewhere. that happens all over the planet. my disease is cognitive behavior thing you talked about this morning, or lessening the felony con fiction to a misdemeanor conviction thing, that's all good. the addict that you deal with, the criminals, addicted criminal is a little redundant anyway. addicted criminal is like saying intelligent criminal. i always tell the incarcerated population, criminal doesn't mean wrong. criminal means caught. they laugh hard at that right there because they know they got caught and then i'll remind them that if you have a sense of humor if balances
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unfairness. if life is fair -- one for the normal and one for the rest. normal people hear the word tweak, it means enhance something. normal people see d.o.c., it's short for document. not department of corrections or drug of choice which go together at some point. normal people don't have silverware drawer at home where the response are burned on the bottom. burned spoons, don't they have pots and pans to cook their food. they must eat small portions of top ramen. yeah, if that. if life was fair, teachers in this country would get made -- paid $1 million a year and professional athletes would work for tips. if life was fair, children wouldn't be born h.i.v. positive or missing limbs and they would all have the same advantage economically, socially, parentally. if life was fair, i wouldn't
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visit a prison on a sunday afternoon and talk to a general population of 500 or 600 and walk through the lobby and see children waiting to go through the metal detector and the look on their faces and they are already used to it. that's a felony. it's no big deal for a 6-year-old to walk through a metal detector to visit their parents. that has to stop. now, for the normal people, if life was fair, your property would still be worth what it was four years ago. that's one of the rest of us clap. my landlord, screw him, we don't care if life was fair, when the copses tossed your apartment serving the warrant, they would put everything back exactly where it was when they got there. this disease doesn't care what group. it's more open-minded than the people that have it. a lot of times when one of us makes the ultimate mistake, we forget who we are and think for five seconds and it costs someone else the rest of their
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life. this disease kills people who don't even have it. it's so open-minded, it says come on, addicted, afflicted, community, recidivism. why wouldn't we do that growing up in the houses that we did. i'm not making an excuse. i'm telling you that's how it starts. my disease has nothing to do with heroin which was comforting or marijuana which was artificial intelligence at some point or cocaine which was necessary if you had a job in the 1980's. . alcohol which put out the flame of shame for a 5-year-old abused boy, why wouldn't i drink? well, those substances are gone, but i realize at some point, this disease is not about substance abuse, it's abuse of self-sense. i was giving substance as a very small kid to develop. so i'll tell the incarcerated people, if you get out of here and never come back to a place like this and don't tell the young people how to never go to a place like this, you're still


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